Case overview

A child’s parents appealed to the Upper Tribunal (UT) against the SEND Tribunal’s decision that a maintained school with a special educational needs (SEN) unit should be named in their child’s Statement of Special Educational Needs (a “Statement” was an earlier version of an education, health and care (EHC) plan).

The SEND Tribunal the decided the unit was part of the school where it was located so it counted as a mainstream placement at the school.

While the unit was in a separate building and there would be limited integration with the main part of the school, the SEND Tribunal said that it had:

• no head or management committee of its own
• a lead teacher who was managed by the primary school’s head teacher
• no separate governing body or funding
• no separate Ofsted inspection
• no separate roll (the pupils were on the roll at the primary school)
• performance records and lesson planning approved by the primary school’s head or deputy head teacher, and
• no way of independently accepting pupils (admissions were considered by the primary school’s deputy head who was also the SENCO).

The SEND Tribunal also noted that the main purpose of the unit was to prepare pupils for integration into the rest of the primary school.

In their appeal to the UT, the parents applied the legal definition of a school (in section 4 Education Act 1996) and earlier case law, to argue that the SEND Tribunal was wrong and the unit was not part of the mainstream school, but a separate special school. Their appeal was unsuccessful. The UT decided that the SEND Tribunal was right to conclude the unit was part of the mainstream school and not a separate special school, so it had not made a legal error.

What does this mean?

Whether setting is a school under section 4 Education Act 1996 depends on if it is an educational institution providing primary and/or secondary education that’s not a college or in the higher education sector.

Working out if a specific setting is a school is a question of fact for the SEND Tribunal to decide, when it is relevant to a dispute about the placement in an EHC plan.

In reaching its decision the SEND Tribunal must take into account all relevant evidence and factors. It must also consider, but not treat as a “tick-box” list of requirements, all of the matters referred to in earlier case law which include:

• governance structure
• registration as a school
• Ofsted inspection
• whether a setting is referred to as a school or something else

An SEN unit within a mainstream school counts as a mainstream school placement. As confirmed in more recent case law, the school would be named in section I of an EHC plan and the special educational provision provided in the unit needs to be specifically described in section F.

The full report for MA v Borough of Kensington and Chelsea (SEN) [2015] UKUT 186 (AAC) is available online.

For further information, you can see also our pages on asking a local authority to name a unit or resource base in a child’s EHC plan and choosing a school with an EHC plan.